Siegel v. Village of Wilmette

Appeal from the Circuit Court of Cook County Honorable Alfred Paul, Judge Presiding

Plaintiff, Judd Siegel, brought suit against defendant, the Village of Wilmette, for injuries he sustained when he slipped and fell on ice accumulated on a sidewalk owned by defendant, the Village of Wilmette. Defendant filed a motion for summary judgment which the trial court granted. On appeal, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment because a reasonable jury could have concluded that the ice was an unnatural accumulation due to the defective nature of the sidewalk. We affirm.

On January 24, 1996, plaintiff slipped and fell on the sidewalk located at 3108 Wilmette Road in the residential neighborhood were plaintiff lived. Plaintiff filed a complaint against defendant on January 21, 1997, and alleged that the sidewalk contained sunken sidewalk squares where melting snow accumulated and formed a shallow "ice pool" which existed for a long period of time so that, as more snow became entrapped and froze in the sunken sidewalk squares, an artificial and unnatural accumulation of ice resulted.

Defendant filed an answer denying plaintiff's allegations and argued the following affirmative defenses: (1) plaintiff failed to keep a proper lookout as he walked on the sidewalk; and (2) plaintiff failed to take an alternative route to his destination. Defendant also argued that it was immune from liability by virtue of its lack of constructive or actual notice pursuant to section 3-102 of the Local Governmental and Governmental Employee Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 1998)). Defendant further argued that it was immune from liability by virtue of the fact that the condition was a natural accumulation of snow and/or ice. 745 ILCS 10/3-105(a) (West 1998). Defendant also asserted that it owed no duty to plaintiff because the condition complained of was open and obvious to plaintiff.

During plaintiff's deposition, plaintiff testified that he did not look down in front of him before the fall and that he did not notice the ice on the ground until after he fell. Plaintiff did not know how long the ice had been present before the fall and had no knowledge of whether defendant had received any complaints regarding the condition of the sidewalk.

Lou Siegel, plaintiff's father, was also deposed. Siegel testified that he photographed the area where plaintiff fell the day after the accident occurred. Siegel also testified that he did not notice the pooling of water in the area where plaintiff fell. Since the accident, Siegel had not spoken with any witnesses who were aware that there was any condition in the area where plaintiff fell which involved ice or the pooling of water, nor was Siegel aware of any prior accidents in this area involving people tripping or slipping.

Richard Hansen, engineer for the Village of Wilmette, testified that defendant owns approximately 167 miles of sidewalk and each mile has approximately 1,056 slabs of concrete. The sidewalk slabs can rise and settle, thereby causing cracks and elevation deviations between the slabs. Hansen inspected the sidewalk where plaintiff fell and testified that he noticed the height differential depicted in the photograph he was shown. Hansen also testified that based on the photographs, it looked as though the sidewalk had a drainage problem. It is a buildup of the parkway that prevents drainage off the sidewalk. This happens in developed areas over time where lawn clippings and leaves build up and raise the lawn surface. According to Hansen, this defect could have existed anywhere between 9 months and 20 years before the accident.

Hansen testified that defendant budgeted $95,000 per year for sidewalk replacement work between the years of 1993 and 1998. Hansen also testified that defendant uses a vertical displacement of more than an inch and then uses an inch and a half as an indication that some maintenance is required. In April 1995, defendant undertook a village-wide survey, the objective of which was to identify sidewalks in need of repair. The sidewalk where plaintiff fell was not identified in the survey as in need of repair.

According to Hansen's testimony, cracks could be formed because of the nature of concrete and external sources such as the ground around the sidewalk. While 75% of the budget for maintenance and repair of sidewalks goes toward sidewalk vertical displacement, the rest is for cracked or missing pieces of sidewalks. Hansen testified that because the budget is limited, defendant attempts to budget money to replace only hazardous walks. Drainage problems on sidewalks are not considered a main hazard.

William Dzialo, employed by the village as an engineering inspector, testified that he inspected the sidewalk where plaintiff slipped. He measured a one-inch rise that extends about a foot and a half from the parkway and then goes back to the grade with the remainder of the sidewalk. Dzialo also testified that it looked as though the sidewalk was pitched north towards the homeowner's lot. According to Dzialo, defendant does not distinguish between trip and slip hazards. The deviation between the heights of two adjacent slabs of sidewalk must be more than 1½ inches in order for the sidewalk to be defined as hazardous.

After all depositions were taken, defendant filed a motion for summary judgment and argued that the danger was open and obvious; that any reasonable person walking on the sidewalk in question could observe and avoid the icy condition. Defendant further argued that pursuant to section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 1998)), it was immune and this immunity was extended to municipalities by virtue of section 2-109 of the Tort Immunity Act. 745 ILCS 10/2-109 (West 1998). Defendant also argued that the defect was de minimis and, therefore, it was under no duty to repair it and that it had no actual or constructive notice of the condition.

During the hearing on the motion for summary judgment, plaintiff's counsel argued that the de minimis rule did not apply to this situation because he slipped on the ice rather than tripped. Therefore, defendants were liable due to the sloping design of the sidewalk, which allowed the water to pool and eventually led to ice which caused plaintiff's fall. The trial court granted the motion and found that if a defect of 1 1/8 inches or less is de minimis, such a defect is not actionable because a municipality should not be liable for minor sidewalk defects.

Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment. A reviewing court conducts a de novo review of the evidence in summary judgment cases. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323 (1995). The reviewing court must construe all evidence strictly against the movant and liberally in favor of the nonmoving party. Espinoza, 165 Ill. 2d at 113. "A motion for summary judgment should be granted only where the pleadings, depositions, admissions and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." First of America Trust Co. v. First Illini Bancorp, Inc., 289 Ill. App. 3d 276, 283, 685 N.E.2d 351 ...

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